Application to enforce order requiring respondent to execute a contract negotiated by the multi-employer bargaining Association to which it had belonged. The Court of Appeals held that substantial evidence supported the findings that respondent did not make timely withdrawal from multi-employer bargaining, and that its employees, as unfair labor practice strikers, were entitled to reinstatement. Enforcement granted.
Before Friendly, Gurfein and Meskill, Circuit Judges.
This appeal was argued as a companion case to N.L.R.B. v. Independent Association of Steel Fabricators, Inc., 582 F.2d 135 an opinion which is filed herewith. The Association here involved is a different association of employers, though the Local Union is the same union.
The NLRB petitions for enforcement of its order issued against Acme Iron Works, Inc. ("Acme"), a Brooklyn-based company engaged in the manufacture, sale and distribution of various metal and wire products. That order is based on Acme's refusal to execute a collective bargaining agreement between Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO ("Local 455") and Wire Works Manufacturers Association ("Association"), a multi-employer bargaining organization to which Acme belonged. The Board also determined that Acme had committed an unfair labor practice by entering into a union security contract with Local 810, Steel, Metals, Alloys and Hardware Fabricators and Warehousemen, International Brotherhood of Teamsters ("Local 810") at a time when it was obligated to bargain with Local 455. Since this petition for enforcement raises some of the same issues and arises out of the same industry-wide strike as N.L.R.B. v. Independent Association of Steel Fabricators, Inc., 582 F.2d 135 (2d Cir. 1978), the two were set down for argument before the same panel.
For some 30 years antedating this dispute, Local 455 has represented the production and maintenance employees of the members of the Wire Works Manufacturers Association. Local 455 has represented employees of two other multi-employer associations, Allied Building Metals Industries and the Independent Association of Steel Fabricators, and has bargained separately with about 60 independent companies. Historically, the union's practice has been to negotiate a contract with Allied first or, on occasion, with the independent employers, and then to use that agreement as the basis for contracts with the remainder of the industry.
Local 455's contracts with the steel and metal industry expired on June 30, 1975. About a month before the expiration, the Association provided the union with a list of eight employers, including Acme, who had given bargaining authorization to the Association. During June, the union met twice with Association negotiators. Before the first meeting, Local 455 circulated a general proposal asking for substantial increases in wages and contributions to the employee benefit funds. That proposal, together with general industry conditions, were the subjects of discussion at the first meeting on June 16. By letter dated June 19, the Association countered with an offer to continue the expiring contract for three years, subject to modifications concerning funds contributions. At the second June session, the union rejected that proposal. After discussing other matters such as employee training programs, vacation benefits, and the Association's right to purchase prefabricated panels, union negotiators asked if the Association had any specific wage offer to make. An Association spokesman responded that he saw no sense in making an offer until the union concluded negotiations with Allied.
On July 1, 1975, Local 455 went on strike against all employers in the industry who had not signed a new contract. In mid-July, union business representative Matienzo presented Association negotiator Bardy with a new proposed contract which specified a 10% Wage increase and the same funds benefit contributions as would be negotiated with Allied. By letter of July 23, the Association rejected that proposal and asked to be apprised of any changes in the union's position.
From July 1975 through mid-January of 1976, the parties did not schedule any bargaining sessions nor did either party request bargaining. During the hiatus in bargaining, Acme entered into a collective bargaining agreement with Local 810, dated January 1, 1976.
In early January 1976, the union reached a settlement with Allied and, a week later, on January 13, presented the Association with a new stipulation based on its agreement with Allied and fifteen independent employers. The Association indicated a willingness to accept the basic economic package negotiated with Allied, and the union acceded in general terms to the Association's demand for the right to buy prefabricated panels. Acme did not send a representative to the January 13 meeting, and when union negotiators inquired about its absence, an Association spokesman responded that he had heard that Acme was "finished" with Local 455 and agreed to have definite information by the next meeting.
The parties met again on January 19 and executed a stipulation of settlement. Again Acme was not represented, and Association negotiator Bardy informed the union that he had received a letter of resignation from Acme. The letter was dated August 11, 1975. At Colavito's request, Bardy marked the letter "Received January 16, 1976".
On January 20, the union ended its strike against all Association members except Acme, and orally informed company representative Batthaney that the union expected Acme to execute the Association agreement and reinstate union employees. By letter dated March 24, 1976, Local 455 again stated that it considered the company bound by the Association agreement, and on March 29, the union sent a letter requesting reinstatement on behalf of the company's employees. Acme made no response to either letter.
On the basis of the foregoing facts, the Board concluded that Acme had not made a timely withdrawal from multi-employer bargaining and therefore that its refusal to execute the agreement negotiated by the Association was violative of §§ 8(a)(1) and (5) of the Act.*fn1 The Board also found that Acme, by executing a union security contract with Local 810 at a time when it was obligated to bargain with Local 455, had violated §§ 8(a)(1), (2) and (3) of the Act and, by refusing to reinstate its workers on their unconditional offer to return to work, had violated §§ 8(a)(1) and (3) of the Act.*fn2
Acme contends here, as it did before the Board, that its withdrawal was justified by an impasse in negotiations, by the union's bad faith in bargaining, and by dire economic circumstances. It submits further that the union made its request for reinstatement without actual knowledge of the employees' ability ...